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The Equality Bill – Royal College of Psychiatrists 2nd Reading

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					    For more information contact:
    Neil Balmer, Public Affairs Manager, RCPsych, nbalmer@rcpsych.ac.uk or 0207235 2351 x 149




                 The Equality Bill – Royal College of Psychiatrists’
                  nd
                2 Reading briefing - House of Commons - May 2009

    1. Introduction

    1.1 The Royal College of Psychiatrists welcome the Equality Bill, which will
    strengthen and enhance existing discrimination legislation. Tackling discrimination
    is one of the Royal College of Psychiatrists’ eight key priorities, as set out in our
    three year Fair Deal campaign.i Significant improvements for disabled people in the
    Bill include the duty to outlaw age discrimination by service providers (Part 1), the
    creation of a Public Sector Equality Duty (Part 11, Chapter 1) and measures to
    remedy the Malcolm Judgement (Part 1, Clause 14).

    1.2 This briefing outlines four key policy areas for the College. Two relate
    to current provisions in the Bill, which we believe need to be strengthened
    through Government commitments and two are opportunities to tackle areas
    where discrimination occurs through amendments to the legislation. These are:

    1.2.1 Outlawing Age Discrimination in Mental Health Services
    The duty to outlaw age discrimination by service providers (including the NHS), will
1
    be an important driver, alongside organisational change at a service level, to
    address the discrimination suffered by older people in mental health services. We
    are concerned that the Government has not committed to setting a date for when
    the provisions in the Bill will come in to force. We are seeking a legally binding
    timetable for the introduction of age discrimination in the NHS. (See Para. 2, p. 2)

    1.2.2 Creating a new Public Sector Equality Duty.
    We welcome the creation a new public sector equality duty in the Bill. However, we
    are concerned that the detail of the duty is not drafted in the Bill. We believe that
    the Government must make a commitment that the new duty will not be watered
    down and will contain the key elements of the existing disability equality duty, such
    as the full involvement of disabled people in the formulation and monitoring of the
    duty. (Para 3, p.4)

    1.2.3 Removing discrimination against mental health in Parliament.
    The Equality Bill offers a significant opportunity to scrap laws which discriminate
    against mental health in Parliament. We are calling for Parliamentarians to remove
    laws that mean that an MP automatically loses his/her seat in Parliament if detained
    under the Mental Health Act for a period of six months or more. (Para 4, p. 6)

    1.2.4 Removing discrimination in the employment interview process.
    There is a serious need to address discrimination in the employment interview
    process. We are calling for Parliamentarians to table amendments to place a
    restriction on the use of pre employment questionnaires so that employers cannot
    ask about a candidate’s disability until after they have been offered a job. (para 5,
    p.7)
    For more information contact:
    Neil Balmer, Public Affairs Manager, RCPsych, nbalmer@rcpsych.ac.uk or 0207235 2351 x 149




    2.       Outlawing Age Discrimination in Mental Health Services

    2.1   The nature and extent of disadvantage experienced by older people
    in mental health services

    2.1.1 Background

    Meeting the need of an ageing population will be a major challenge for health and
    social services in the UK over the next 4 decades.

    Independent research on demographic change shows that the only mental disorders
    to increase in absolute numbers by 2026 will be due to the direct consequence of
    an ageing population.ii That the number of people with dementia will rise by 150%
    by 2050 is well known but there is less recognition that those over age 75 with
    depression will increase by 80% by 2026 and the number affected by all mental
    disorders will rise by a similar proportion in absolute terms.

    In June 2008, the Department of Health commissioned two literature reviews and
    two research studies on the costs and benefits of eliminating age discrimination in
    the provision of health and social care.

    One of these reviews, Age Discrimination in Mental Health Services, by the Personal
    Social Services Reviewiii, draws on extensive current evidence which shows that
2   older people experience serious discrimination in mental health services because of
    their age. In April this year, a Healthcare Commission study of older people’s
    mental health services in England and Wales, ‘Equality in later life’, concluded that:

    ‘Despite the significant achievements of the National Service Frameworks (NSFs)
    for Mental Health and Older People, there has been less emphasis on mental health
    services for older people than on those for younger adults [the framework for
    mental health only addresses the mental health needs of working adults up to
    65].’iv

    2.1.2 Access to Services

             Specialist Services

    Some of the most important improvements in mental health care and treatment in
    the past decade have centred on the expansion of specialist services, many based
    in the community.

    There is no single policy document which says that people who are over 65 should
    not receive the same access to treatments, yet independent research commissioned
    by the Department of Health has demonstrated that older people do not have the
    same access as working age adult mental health services to a range of specialist
    teams developed from targeted funding provided by the Department of Health.
    For more information contact:
    Neil Balmer, Public Affairs Manager, RCPsych, nbalmer@rcpsych.ac.uk or 0207235 2351 x 149


    A joint report from the Healthcare Commission, Audit Commission and Commission
    for Social Care Inspectionv stated that older people reported a noticeable difference
    in their experience of accessing services as they reached and passed the age of 65.

    2.1.3 Lack of investment and under resourcing.

    Older people have also faced serious underinvestment and under resourcing of
    Government recommended services. There is evidence that NHS older people’s
    mental health services are losing resources for patients purely to meet financial
    pressures. While this is not exclusive to older people’ services they start from a
    more limited resource, as described, and the population in need of these services is
    increasing.

    In a Royal College of Psychiatrists survey, members of the Old-Age faculty reported
    of having been ‘told of evidence that specialist services for older people with mental
    health problems, including dementia, are being cut purely to meet the financial
    pressures created elsewhere in the NHS, and to meet the demands of the Secretary
    of State that financial balance must be achieved’ vi

    The government has
    invested extra money to                          Box 1: Old Age Faculty Survey Findings:
    fund working age adult
    mental health services (18-
    64 years) during the last                Over half of the survey (58%) reported that they had
3   three years to develop crisis            seen cuts to their services in the 2007/2008 financial
    and assertive outreach                   year, including:
    mental health services but
    has made no investment for                   •   ward closures (30/74; 40%) with several
    older people. These services                     respondents mentioning the loss of continuing
    are intended to reduce the                       care and respite beds;
    need to admit a person to                    •   loss of day hospital services (16/74; 22%),
    hospital and help them                       •   reduction of community teams (10/74; 14%).1
    recover in their own home.
    Equivalent services are not
    available to older people.

    2.1.4 Work force

    There are a number of specialisms in psychiatry that are not available to older
    people. These include liaison psychiatry, where mental health treatment is provided
    in general hospitals, and rehabilitation psychiatry.

    This means that older people with mental health problems in general hospitals do
    not have access to an equivalent specialist service to younger adults. This is despite
    older people occupying 60% of NHS beds and 50% of older people admitted to
    general hospitals also suffering a mental health problem.vii
    For more information contact:
    Neil Balmer, Public Affairs Manager, RCPsych, nbalmer@rcpsych.ac.uk or 0207235 2351 x 149



    2.2     Measures in the Bill

    2.2.1 Delayed introduction for equal access to goods and services on
    grounds of age

    The provisions outlawing age discrimination by service providers (including the
    NHS) are included in the Equality Bill but they will not come into force immediately
    and may be subject to exceptions.

    Clause 203 sets out when the provisions in the Equality Bill will come in to force.
    For the majority of the provisions there is no set date for commencement but it will
    be up to the Minister to bring them in when the Government decides.

    We welcome the Ministerial Statement by Care Services Minister Phil Hope on 27
    April, which emphasises the Government’s desire to ‘implement the changes as
    soon as practicable.’viii However, we remain concerned that the words ‘as soon as
    practicable’ are too vague.

    The Government has previously stated that ‘implementation challenges will be
    greatest in the health and social care sectors’ and that ‘this sector will require the
    longest transition period.’ ix

    2.3     What the College would like to see happen
4
    It is paramount that the Government fully carries out its commitment to
    outlawing age discrimination by service providers. In order to do this we
    believe that the Government must commit to a legally binding timetable for
    the introduction of regulations to introduce the ban on age discrimination
    in health and social care.

    Unless they can commit to a time-table for implementation, then there is a
    real danger that the proposals will be delayed or, more worryingly, could
    become hostage to political fortune.
    For more information contact:
    Neil Balmer, Public Affairs Manager, RCPsych, nbalmer@rcpsych.ac.uk or 0207235 2351 x 149




    3.      Creating a new Public Sector Equality Duty.

    3.1     Importance of a strong public sector equality duty

    We welcome the Government proposal to create a public sector equality duty in
    Part 11, Chapter 11 of the Equality Bill. This will bring together the three existing
    duties and extend to gender reassignment, age, sexual orientation and religion or
    belief.

    As the Commission for Equality and Human Rights has found, the disability equality
    duty has changed the profile and the approach towards disability across many
    public authorities. From the evidence that has been produced there is no doubt that
    greater priority is being given to disability issues by public authorities and in
    particular a shift in the perception of disability as being an add-on issue to one of
    being the core business of what public authorities do. The duty has arguably been a
    more powerful mechanism for overcoming disadvantage and discrimination in the
    public sector than the rest of the DDA.

    A report commissioned by the Disability Rights Commission commissioned into the
    equality schemes done by NHS bodies found real benefits in the emphasis on
    involvement of disabled people. This involvement rather than consultation is unique
    to the disability equality duty. Those public authorities who had involved disabled
    people had equality schemes that were robust, detailed and targeted at practical
5   issues. They were also more active in promoting employment of disabled people in
    their workforce.

    The College has a particular concern that the NHS should be more proactive in
    ensuring that people with mental health problems, especially those with fluctuating
    conditions, should be employed within NHS services and that those employees who
    develop a mental health problem should where possible, with reasonable
    adjustments if necessary, be retained. The public sector duty has a key role to play
    in this regard.

    3.2     Measures in the Equality Bill

    As drafted, The Equality Bill does not set out the detail of the public sector equality
    duty but leaves it to regulations. We are concerned that this does not give
    Parliamentarians the opportunity to fully debate the detail of the duty.

    There is concern that the public sector equality duty introduced in this Bill may
    dilute the effectiveness of the disability equality duty and the momentum that has
    built to advance the causes of disabled people.
    For more information contact:
    Neil Balmer, Public Affairs Manager, RCPsych, nbalmer@rcpsych.ac.uk or 0207235 2351 x 149



    3.3     What the College would like to see happen

    On 29th April 2009, the Work and Pensions Select Committee produced a report
    entitled: The Equality Bill: how disability equality fits within a single Equality Act.
    The report discussed the single equality duty and made the following
    recommendation:

    ‘We strongly believe that any attempt to harmonise the public sector duties should
    not dilute the attention that is given to disability discrimination. We recommend
    that the key elements of the Disability Equality Duty, particularly the requirement
    of more favourable treatment, need to be preserved.’x

    We fully support this recommendation and we would like to see a commitment
    from the Government that the public sector equality duty will contain all of
    the strengths of the current disability equality duty so it is an effective tool
    in strengthening and promoting citizen’s rights. An integral part of the
    duty must be the involvement of disabled people in its formulation and it’s
    monitoring.


    4       Removing Discrimination against Mental Health in Parliament.

    4.1      Current law
6
    Under Section 141 of the Mental Health Act 1983 an MP automatically loses his/her
    seat in Parliament if detained under the Act for a period of six months or more. By
    contrast there are no provisions to remove MPs suffering from physical illnesses
    which stop them from carrying out their duties and responsibilities for the same
    length of time. Furthermore, if the MP is detained using the authority of the Mental
    Capacity Act, he or she will not automatically lose their seat.

    4.2      Our concerns

    As joint-Secretariat to the All-Party Parliamentary Group on Mental Health
    (APPGMH), The Royal College of Psychiatrists helped to produce a report on mental
    health in Parliament in July 2008, which was based on a survey of all MPs, Peers,
    and their staff.xi

    This survey showed that MPs had a significant experience of mental distress both
    personally and among friends and family, but they were worried about disclosing
    this because of fear of the stigma and discrimination that is associated. Repealing
    Section 141 of the Mental Health Act would be a symbolic step towards addressing
    this stigma.

    By removing the seat of an MP who is detained under the Mental Health Act, the
    law gives the false impression that an MP cannot recover from a mental disorder.
    This is a wholly out of date viewpoint and runs counter to the modern approach to
    recovery in mental health. Section 141 has never in fact been used; however it is a
    For more information contact:
    Neil Balmer, Public Affairs Manager, RCPsych, nbalmer@rcpsych.ac.uk or 0207235 2351 x 149




    totemic piece of law, which ensures that discrimination exists at the heart of our
    democracy.

    The Speakers Conference on Parliamentary Representation has noted that
    representatives from the disabled community have expressed concern that Section
    141 is one factor which makes them feel unwelcome in Parliament.

    We are particularly concerned about the effect that this might have on people with
    a history of mental disorder who want to stand as prospective parliamentary
    candidates, but may be put off if they believe that they will be disadvantaged. As
    the APPGMH survey showed, even those who do stand, or get elected, feel they
    have to hide their experience of mental illness.

    4.3      What the College would like to see happen

    We would like to see measures introduced in to the Equality Bill to remove
    Section 141 of the Mental Health Act to scrap the discriminatory law which
    means an MP automatically loses his/her seat in Parliament if detained
    under the Mental Health Act for a period of six months or more.


    5.      Removing Discrimination in the Employment Interview Process.

7   5.1     Current situation

    Evidence tells us that people with mental health problems face serious
    discrimination in the employment process, notably through the attitudes of
    employers.

    This is a particularly serious problem at the pre employment stage. A Royal College
    of Psychiatrists report from 2008, commissioned by the cross government Health
    Work and Well-being Programme, points out that:

    ‘Given the prevailing attitude among employers, it is perhaps not surprising
    that many people are reluctant to disclose their psychiatric history at the pre
    employment assessment fearing the job offer might be withdrawn or that they will
    be treated differently as a result (Stuart, 2006). Although policies vary, this can put
    the person at risk of the job offer being withdrawn or of dismissal should
    information about past mental health difficulties emerge subsequently (Chartered
    Institute of Personnel and Development, 2007).’xii

    There is no law in place that will actually stop an employer from asking health-
    related questions. People applying for jobs could face questions about any medical
    problems they have or even the medication that they might be on.

    5.2     International perspective

    In the United States, as a response to the problems outlined in 5.1, a process
    within the Americans with Disabilities Act (ADA) was established to isolate an
    For more information contact:
    Neil Balmer, Public Affairs Manager, RCPsych, nbalmer@rcpsych.ac.uk or 0207235 2351 x 149


    employer's consideration of an applicant's non-medical qualifications from any
    consideration of the applicant's medical condition. This means that an employer
    cannot ask people if they have a disability until after a job offer has been made.

    The prohibition of pre employment questions also exists already in several EU
    Countries: Spain, France, Italy, Belgium, Portugal and the Netherlands.

    5.3 Disability Rights Taskforce and Disability Rights Commission
    recommendations.

    In the UK, both the Disability Rights Taskforce (DRT) and the Disability Rights
    Commission (DRC) have looked in to the issue of disability related enquiries by
    employers. In 1999 and 2003 respectively, the DRT and the DRC recommended
    that enquiries should be restricted to only very limited circumstances. This was
    rejected by the Government.

    In a section on pre-employment questionnaires in the Work and Pensions Select
    Committee report on the Equality Bill, the Committee comes out in support of the
    DRT recommendation:

    ‘We endorse the Disability Rights Taskforce's recommendation that disability related
    enquiries before a job offer should be permitted only in very limited circumstances.
    As a general rule such questions should only be permitted after a
    conditional/provisional job offer has been made. There will be cases where a job
8   offer is withdrawn because of health-related concerns or because reasonable
    adjustment for a disability is not possible. However, the process would then be
    transparent, and where there is disagreement as to the decision, further
    consideration or mediation are possible.’xiii

    5.4     What the College would like to see happen.

    The Department of Work and Pensions Minister, Kitty Usher MP, was asked by the
    DWP Select Committee if the Government would consider banning pre employment
    questionnaires in the Equality Bill and she said: ‘we keep every policy under review
    and we obviously have the evidence internationally. We think they serve a useful
    purpose and, as we have both said, it is illegal to discriminate on the basis of
    disability. Those cases should be taken through the legal system if there is
    evidence.’xiv

    The Equality Bill represents an important opportunity to ensure that the UK
    introduces safeguards against discrimination for people with mental health
    problems.

    The College would like to see amendments to the Equality Bill to bring UK
    disability law up to speed with US and European equivalents by restricting
    the use of pre employment questionnaires in the employment interview
    process. This would provide a much needed and long overdue safeguard
    against discimination for people with mental health problems.
    For more information contact:
    Neil Balmer, Public Affairs Manager, RCPsych, nbalmer@rcpsych.ac.uk or 0207235 2351 x 149




    The Royal College of Psychiatrists

    The Royal College of Psychiatrists is the leading medical authority on
    mental health in the United Kingdom and is the professional and
    educational organisation for doctors specialising in psychiatry.

    Find out more information at www.rcpsych.ac.uk

    i
         www.fairdeal4mentalhealth.co.uk
    ii
          Kings Fund (2008) Paying the Price: The Cost of Mental Health Care in England to 2026.
    iii
     Jennifer Beecham, Martin Knapp, José-Luis Fernández, Peter Huxley, Roshni Mangalore,
    Paul McCrone, Tom Snell,Beth Winter and Raphael Wittenberg (2008) Age Discrimination In
    Mental Health Services,Personal Social Services Research Centre discussion paper 2536
    iv
     Healthcare Commission (2009); Equality in Later Life (National study of older people’s
    mental health services)
    v
     Audit Commission (2006) Living well in later life: A review of progress against the National
    Service Framework for Older People
    vi
     Royal College of Psychiatrists, Old Age Faculty (2007) Old age psychiatry services in the
9   UK – A questionnaire survey of Consultant old age psychiatrists
    vii
      Royal College of Psychiatrists, Faculty of Old Age Psychiatry, Liaison Psychiatry Working
    Group (2005) 'Who Cares Wins'.
    viii
      Written Ministerial Statement by Phil Hope MP, Minister for Care Services; Age
    Discrimination in Health and Social Care; April 27 2009.
    ix
          The Equality Bill: Government response to the consultation. (2008) Cm 7454.
    x
     House of Commons Work and Pensions Committee (2009) The Equality Bill: how disability
    equality fits within a single Equality Act; Third Report of Session 2008–09; Paragraph 214.
    xi
     http://www.rcpsych.ac.uk/pressparliament/aboutourparliamentarywork/allpartygroup/men
    talhealthinparliament.aspx
    xii
      Royal College of Psychiatrists (2008); Mental Health and Work
    xiii
      House of Commons Work and Pensions Committee (2009) The Equality Bill: how disability
    equality fits within a single Equality Act; Third Report of Session 2008–09; Paragraph 156.
    xiv
           Ibid; Paragraph 155.

				
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Description: The Equality Bill – Royal College of Psychiatrists 2nd Reading